Judge Rules State Legislative Leaders Can Intervene in Lawsuit to Protect Arizona Abortion Ban

U.S. District Judge Douglas Rayes released an order Wednesday stating that Arizona Senate President Warren Petersen (R-Mesa) and House Speaker Ben Toma (R-Peoria) may intervene in a court case involving an abortion ban law enacted in 2021.

“When it became clear that Attorney General [Kris] Mayes [D] would not defend Arizona’s law prohibiting discriminatory abortions, the Legislature had to step in. I applaud the federal court’s order recognizing our legislative authority and granting our motion to intervene to defend the constitutionality of this law,” Toma said in a statement emailed to The Arizona Sun Times.

The Sun Times reached out to the State Senate for additional comments but did not hear back before publishing time.

The law in question came from Senate Bill (SB) 1457, sponsored by former State Senator Nancy Barto (R-Phoenix). The bill stipulated that unborn children have the same rights as all other humans and prohibited any abortions sought solely because of a genetic abnormality. The bill also contains language that the legislature may appoint members to intervene if the law were challenged. Ducey signed the bill in April 2021, but legal challenges from abortion activists commenced to prevent the law from being enforced.

Alliance Defending Freedom (ADF), a non-profit legal organization that helped the legislators get the intervention said this law is necessary to protect innocent lives.

“Every unborn life is valuable, precious, and worthy of protection,” said ADF Senior Counsel Denise Harle, director of the ADF Center for Life. “Among other things, this law ensures that babies, including those with Down syndrome, are not targeted for death because of their genetic makeup. While common sense says that this law deserves everyone’s support, abortionists and others with a vested interest in seeing such abortions continue have sued to tear it down.”

Fast forward to January 19th,  Rayes ruled that the ban could go into effect, but the plaintiffs attempted to appeal this decision. Additionally, the plaintiffs requested to stay proceedings in this case while the appeal was pending, which was granted by the District Court.

On February 3rd, ADF attorney Kevin Theriot submitted a motion to the district court asking it to allow Petersen and Toma to intervene. The motion argued that under Arizona Revised Statute (ARS) § 12-1841, the legislators have a right to speak up when an Arizona statute is challenged as unconstitutional. Additionally, Theriot argued that newly elected Attorney General Mayes would not properly defend the law, which also entitled an intervention.

On February 17th, Mayes submitted a response stating she took no position on the motion to intervene. Much like Theriot argued, Mayes also said she did not intend to defend the law’s constitutionality.

Theriot then submitted a reply to the motion to intervene, arguing again that Petersen(pictured above, right) and Toma (pictured above, left) can intervene because they “have unique interests in defending legislation that existing parties will not protect.”

This led to Rayes’ new order, granting the motion to intervene. The Plaintiffs argued that the lawmakers should be unable to intervene because SB 1457 allowed lawmakers to intervene only after a concurrent resolution from the legislature, which Petersen and Toma did not have. However, Rayes argued that this did not prevent the lawmakers from using the provisions of ARS § 12-1841 to intervene. Rayes noted that “their [the legislator’s] interest is no longer adequately represented by the existing parties because Attorney General [Kris] Mayes has notified the court that she does not intend to defend the challenged laws.”

“We’re pleased the court has allowed Speaker Toma and President Petersen to defend this life-saving law,” said Harle.

Until the Ninth Circuit Court decides the Plaintiff’s appeal, enacting this law will remain on hold.

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Neil Jones is a reporter for The Arizona Sun Times and The Star News Network. Follow Neil on Twitter. Email tips to [email protected].
Photo “Ben Toma” by Ben Toma. 




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